Scotland is renowned for its natural beauty and grand landscapes. What’s more, in Scotland we have unique legislation which provides for public access to most land and water. The right to roam has been embodied as a statutory right since 2005 in terms of the Land Reform (Scotland) Act 2003 (the “2003 Act”). It allows everyone access to most land and inland water in Scotland for recreational and other purposes. Our comprehensive guide to the right to roam can be found here.
But with the rapidly evolving situation regarding the spread of COVID-19 (Coronavirus), can individuals still enjoy their right to roam? Can landowners prevent the right to roam being exercised? And what can landowners do if people are not maintaining a social distance on their land?
The Coronavirus Act 2020 received Royal Assent on 25 March 2020. It gave the Scottish Government powers to allow the legal enforcement of social distancing restrictions, including powers to make health protection regulations and powers to issue directions relating to events, gatherings and premises, with the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 coming into force on 26 March 2020 (the “Regulations”). The Regulations include the following restrictions on individuals living in Scotland:
- no person may leave the place where they are living (Regulation 5)
- no person may participate in a gathering in a public place of more than two people (Regulation 6)
Any person breaching these restrictions commits a criminal offence unless their behaviour falls within one of the exceptions listed in the Regulations. For example, it is permitted to leave your house where there is a “need” to exercise, either alone or with other members of your household and the two-person restriction on gathering in a public place does not apply where those gathered are members of the same household. This allows families living together to exercise together.
Exercise and the right to roam
Scheduling time for exercise is a key way to manage our physical and mental wellbeing. But where and when can that exercise be undertaken? The guidance from the Scottish Government is that individuals who are not in high risk clinical groups, or living with someone who has symptoms of COVID-19 can undertake “daily” exercise outside – i.e. a maximum of once per day, although the Regulations do not specifically put any time limit on the exercise. The guidance also states that exercise should be undertaken locally, and that individuals should observe social distancing rules whilst exercising (i.e. stay more than 2 metres from others).
The Regulations do not take away an individual’s right to roam provided it is exercised in accordance with the Regulations and responsibility in terms of the Scottish Outdoor Access Code. The Scottish Government is clear that exercising access rights responsibly means respecting the needs of other people (including landowners and farmers who are helping to maintain the nation’s food supply), and access taker’s behaviour must be adapted accordingly in the national effort to contain the spread of COVID-19. A balance must be struck between the rights of the public to exercise the right to roam and the protection of landowners, farmers and their employees from unnecessary exposure to COVID-19.
It is permitted to undertake your daily exercise on any land that the right to roam can be exercised over. Exercise may include activities such as walking, cycling or jogging. It does not include picnicking, wild camping or participating in organised sporting events. Using the right to roam to participate in activities that are not strictly “exercise” will put you in breach of the Regulations, and leave you liable to a fine (initially £60, reduced to £30 if paid within 28 days, increasing to a maximum of £960 for repeat offences).
What about driving to a beauty spot to go for a jog or walk your dog? Strictly, the legislation does not ban this but the Scottish Government has asked the public to exercise locally and not use cars or other vehicles for this purpose. Many of Scotland’s landowners, including Forestry and Land Scotland, have shut their public car parks to encourage the public to exercise locally.
Avoiding contact is also recommended and the Scottish Government has recommended access takers avoid touching surfaces and if possible plan a route that does not require the opening of gates. Individuals should also try to avoid busy times on popular paths or places.
Under the 2003 Act, landowners are obliged to ensure others are able to exercise the right to roam and this continues to apply notwithstanding the spread of COVID-19 and the Regulations. But with reports of people gathering, sunbathing and picnicking in public spaces, does a landowner have any obligations to ensure access takers comply with the Regulations and maintain a social distance? What should they do if it becomes apparent that people are exercising the right to roam on their land in contravention of the Regulations?
Whilst those responsible for business that are permitted to remain open, such as shops and post offices, are obliged to take measures to ensure that distance of two metres is maintained between people on the premises, there is no such obligation on landowners whose land may be being used for exercise. If there are three or more people gathered together in contravention of the Regulations, the landowner can report this to the police or local authority, who have powers to direct the gathering to disperse, and remove those who do not comply.
Landowners do have to use and manage their land responsibly. Land management that unduly interferes with the public’s right to roam is not responsible. Although landowners are prohibited from obstructing or discouraging others from exercising the right to roam, they can take steps such as putting up signs, notices and fences if it is for a legitimate land management purpose. In ordinary times, this may be used by landowners to prevent the right to roam being exercised if there is a safety reason for doing so, perhaps where there is a risk of a landslip or falling rocks.
Is being unable to ensure a social distance is maintained a legitimate land management reason to prevent access? Possibly – although taking steps such as putting up notices reminding users to maintain a social distance, recommending alternative routes and shutting public car parks, picnic and BBQ areas may be more proportionate. Engaging with police and local authorities when gatherings are taking place on land is probably a better option than blocking the access altogether.
A statement by Scottish Ministers on what exercising rights of access responsibly under the 2003 Act means during the COVID-19 emergency can be found here.